Terms and Conditions

1. PROVISION OF SERVICES

  1. SaaS Services
    1. Subject to the terms and conditions of this Agreement and to the extent provided for in the Statement of Work (“SOW”) to be signed by the Parties and     attached as Exhibit A, and Order Form (“Order Form”) attached as Exhibit B, DisburseCloud will provide Client with the necessary passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures (the “Access Protocols”), as may be necessary to allow Client and its employees and contractors, and Client’s Customers who are authorized by Client, to access the SaaS Services for the duration of the Term set forth in the SOW (the “Subscription Term”).  This access is a non-exclusive, non-transferable right to access the SaaS Services, and will begin on the Effective Date and continue throughout the Subscription Term.  Based on Client’s instructions contained in the SOW, DisburseCloud shall use commercially reasonable efforts to implement parameter settings, features, and options that shall apply to Client (“Client Platform”).  
  2. Login Credentials
    1. During the configuration and set-up process for the Saas Services, Client will identify administrative and user credentials for the Client Platform.
  3. Hosting  
    1. DisburseCloud will, at its own expense, provide for the hosting of the SaaS Services (“Hosting”) on its network (the “DisburseCloud System”), provided that nothing herein will be construed to require DisburseCloud to provide or bear any responsibility with respect to, any telecommunications, hardware, or computer network hardware required by Client or its Customers to access the SaaS Services from the Internet (“Equipment”). Hosting services may be performed by a third party at DisburseCloud’s sole discretion.
  4. Deliverables  
    1. The Deliverables are outlined in the SOW, and consist of all works of authorship, formulas, algorithms, databases, scripts, modifications, configurations, logos, symbols, designs, and other inventions (whether patentable or not) that DisburseCloud authors, makes, conceives, reduces to practice, develops, or otherwise creates, either alone or jointly with others, while providing SaaS Services for Client (“Deliverables”). Unless stated otherwise in the SOW, DisburseCloud retains all Intellectual Property Rights in the Deliverables and other works (including System Enhancements) prepared by DisburseCloud under this Agreement.
  5. Changes to Services
    1. DisburseCloud may, in its sole discretion, make any changes to the SaaS Services that it deems necessary or useful to (i) maintain or enhance the quality or delivery of the SaaS Services, or (ii) to comply with applicable law.

2. TERM; RENEWALS

  1. Term  
    1. This Agreement will be in effect as of the Effective Date and shall continue for a period of one year (“Initial Term”) unless earlier terminated pursuant to Section 12.
  2. Renewals
    1. This Agreement will automatically renew for additional periods equal to the Initial Term (each a “Renewal Term”), unless either Party gives written notice of non-renewal to the other party at least ninety (90) days prior to the expiration of the then-current Term. The Initial Term and any Renewal Terms shall collectively be defined as the “Term” of this 
  3. Expenses    
    1. DisburseCloud will be reimbursed for pass-through expenses (“Expenses”), including without limitation postage, supplies, courier, data transmission, and telecommunications expenses expended in connection with providing Services to Client.  DisburseCloud will also be reimbursed for Expenses that are expressly provided for in the SOW or that have been approved in advance in writing by Client, provided DisburseCloud has furnished such documentation for authorized expenses as Client may reasonably request.
  4. Payment Account
    1. DisburseCloud will be authorized to electronically debit the account specified by Client (“Payment Account”) to settle: (i) Fees, Expenses, or other amounts owed to DisburseCloud by Client; (ii) third-party fees, charges, fines, or assessments (including but not limited to any payment system or network fees or charges); and (iii) any other payments due by Client. In the event of over-billing and debiting, DisburseCloud will correct the error by reducing the amount of any subsequent debit to the Payment Account by the erroneous debited amount.
  5. Taxes  
    1. The Fees are exclusive of all applicable sales, use, value-added, and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Client will be responsible for payment of all such taxes, fees, duties, and charges and any related penalties and interest, arising from the payment of the Fees. Client will make all payments of Fees to DisburseCloud free and clear of, and without reduction for, any withholding taxes.  Any such taxes imposed on payments of Fees to DisburseCloud will be Client’s sole responsibility, and Client will provide DisburseCloud with official receipts issued by the appropriate taxing authority, or such other evidence as DisburseCloud may reasonably request, to establish that such taxes have been paid.
  6. Payment Disputes
    1. If Client wishes to dispute any Fees or expenses owed by it to DisburseCloud, Client must contact DisburseCloud no later than thirty (30) days after the closing date on the billing statement at issue. Inquiries should be directed to DisburseCloud’s accounting department.
  7. No Deductions or Setoffs
    1. All amounts payable to DisburseCloud hereunder shall be paid by Client in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding regarding any amount DisburseCloud may owe Client for any reason except as may be required by applicable law.

3. SaaS SERVICES

  1. Bank Services 
    1. DisburseCloud shall maintain an agreement with a financial institution (“Bank”) during the Term of this Agreement that may execute Client’s payment instructions provided by Client or its Customers. To the extent that DisburseCloud has any obligations in connection with such agreement with Bank related to the provisioning of the Services (i.e., fulfilling any of Bank’s obligations under any payment processing agreement or performing any payment processing services), Client shall be liable for such obligations, liabilities, and undertakings. Client acknowledges and agrees that Bank’s initial and continued approval of the provisioning of Services is dependent on Client’s financial condition and Client satisfying Bank’s and DisburseCloud’s due diligence requirements. Client agrees to timely provide DisburseCloud with Client’s audited, if available, and if not, then reviewed or compiled financial statements and any other information Bank and/or DisburseCloud may reasonably request to perform a due diligence review at least annually. All information provided by Client under this section shall be accurate and complete, subject to standard reconciliation items and year-end adjustments.
  2. Reliance on Cardholder Data
    1. In performing its obligations and responsibilities under this Agreement, DisburseCloud shall be entitled to rely upon, without additional inquiry, Cardholder Data, transaction data, and/or instructions provided by Client and/or its Customers to DisburseCloud; provided however, that to the extent that DisburseCloud in good faith reasonably believes that any data or instruction is contrary to the provisions of this Agreement, applicable law, or card or payment network rules or requirements of the Bank, DisburseCloud shall promptly provide notice to Client setting forth the reason for its belief, after which point the Parties agree to work together in good faith to resolve any issues resulting from such contrary data or instruction.
  3. Customer Approval    
    1. Client acknowledges and agrees that, to the extent required by Bank as part of its due diligence and risk compliance requirements, DisburseCloud may be required to collect the personal information of certain Customers, and that the failure to provide such information may adversely impact the approval of Services by Bank. Client shall require such Customers identified by DisburseCloud to provide such information or permit Client to provide such information on their behalf in compliance with applicable law. Client will ensure that Services will be provided only to Customers that successfully complete and meet Bank’s BSA/AML obligations and due diligence requirements.
  4. Payments; Checks
    1. Delivery of Payments
      1. Payments uploaded before 9AM MST will sent out the same day.
    2. Incorrect Payments
      1. DisburseCloud shall not be responsible for payments made or documentation delivered to any unintended recipients or for payments made in incorrect amounts due to the input of incorrect information by Client.
    3. Delivery of Checks
      1. DisburseCloud shall make commercially reasonable efforts to ensure that requests for printing checks and documents will be made in a timely manner. However, a number of factors, several of which are outside of DisburseCloud’s control, will contribute to when the checks and documents are received. Moreover, delays in the U.S. or international mail service may also contribute to when the checks and documents are received.  DisburseCloud shall not be liable for any actual or consequential damages arising from any claim of delay.

4. CLIENT RESTRICTIONS AND RESPONSIBILITIES

  1. Conditions of Access and Use 
    1. As a condition to access and use of the SaaS Services, each user authorized by Client (“Client Users”) shall agree to abide by the terms of this Agreement, and Client shall ensure such compliance. Client shall immediately notify DisburseCloud of any violation by any Client User upon becoming aware of such violation and shall be liable for any breach of the terms and conditions of this Agreement by such user. Any subcontractors of Client must have the prior written approval of DisburseCloud. All subcontractors may be required to submit to Bank’s due diligence process and will be required to adhere to the provisions of this Agreement.
  2. Export  
    1. Client agrees that it will not, directly or indirectly, export or re-export, or knowingly permit the export or re-export of the Services or any technical information about the Services, to any country for which the United States Export Administration Act, any regulation thereunder, or any similar Law, requires an export license or other United States Government approval, unless and only to the extent DisburseCloud’s prior written approval, and the appropriate export license or approval, has been obtained.
  3. Audit  
    1. Client understands and agrees that its business practices and compliance with the terms of this Agreement are subject to review and audit by Regulatory Authorities, DisburseCloud, and Bank, including other third parties as Bank’s or DisburseCloud’s authorized third party auditors (“Auditing Parties”). Client shall fully cooperate with each Auditing Party and their authorized representatives (and Client shall cause its subcontractors and their authorized representatives to fully cooperate) in conjunction with an audit by such Auditing Party. Furthermore, Client shall cooperate with any request of the Auditing Party to review any information or material requested by the Auditing Party, and permitting the Auditing Party to inspect or audit Client in accordance with applicable law.
  4. Account Responsibility
    1. Client will be responsible for (i) all uses of any account that Client has access to, whether Client has authorized the particular use or user, and regardless of Client’s knowledge of such use, and (ii) securing its DisburseCloud account, passwords (including but not limited to administrative and user passwords) and files. DisburseCloud is not responsible and shall have no liability for any losses, damages, costs, expenses, or claims that result from stolen or lost passwords.
  5. Settlements
    1. Client will be liable to the DisburseCloud for all funds loaded, authorized, and settled in connection with the Services. Client shall be responsible for the settlement of all transactions in the amount communicated to Client by DisburseCloud. Notwithstanding anything to the contrary in this Agreement, DisburseCloud shall not be obligated to advance or otherwise provide DisburseCloud’s, Bank’s, or any third party’s funds for Services or settling transactions utilizing the Services. Client shall transfer funds to a custodial account maintained at Bank (“Custodial Account”) via Automated Clearing House (“ACH”) payments or Fedwire transfer to fund all load and settlement funds due in connection with any Services (“Settlement Funds”). On or prior to the Effective Date, Client will deposit into the Custodial Account no less than an amount as determined by Bank in its reasonable discretion, that (i) is based on the projected transaction volumes prepared by Client in good faith and provided to DisburseCloud; (ii) takes into consideration risks associated with the Services; and (iii) does not exceed the first month of such projected volume, or such other sum mutually agreed to by the Parties in writing (“Minimum Deposit Amount”). Thereafter, and for the duration of the Term, Client shall at all times maintain in the Custodial Account(s) the Minimum Deposit Amount until such time that DisburseCloud has advised Client in writing or via e-mail (no more frequently than weekly) that the Minimum Deposit Amount is adjusted to an amount, as determined by Bank in its reasonable discretion, that (A) is based on the Client’s historical and projected load and transaction volumes for the next month; (B) takes into consideration risks associated with the Services; and (C) does not exceed the average of the prior thirty (30) days’ load volume. In calculating the Minimum Deposit Amount, Client may rely on the information provided and available to Client via DisburseCloud. DisburseCloud or Bank may require that Client initiate an additional transfer to cover loaded, authorized, or settled funds, on an exception basis upon 24 hours’ notice with mutual written or e-mail agreement of the Parties. If Client fails to so maintain sufficient funds in the Custodial Account, in addition to any other remedies available to DisburseCloud or Bank at law or under this Agreement, DisburseCloud may (x) cease performing the Services until Client has met its obligations under this section, (y) instruct Bank to cease providing Services without liability to Client, and (z) invoice Client for all deficient amounts. Client shall pay the undisputed deficient amount no later than three (3) Business Days following the date of such invoice, and, notwithstanding anything to the contrary in this Agreement, any failure to pay the deficient amount shall constitute a material breach of this Agreement that is not subject to the cure periods as provided in the termination provision of this Agreement.
  6. API Integrations
    1. Client shall be responsible for developing or procuring any software required to integrate the Client Platform with the Platform, including allowing the Client Platform to communicate automatically via the application programming interface (“API”) made available in connection with the Platform (“Integration Software”), in accordance with the API Terms and Conditions attached hereto as Schedule E. Client shall not send through or store malicious code in any Integration Software. Client grants to DisburseCloud a worldwide, nonexclusive, nontransferable, royalty-free right to: (i) access and use the Integration Software; and (ii) distribute and receive Data from the Platform to the Client Platform. The API and all modifications, enhancements, and derivative works thereof, and all documentation and specifications related thereto, shall be deemed DisburseCloud’s intellectual property.
  7. Additional Software
    1. Client shall be responsible for developing or procuring any software required to offer its services to its Customers, and shall provide such software in accordance with the standards set forth in Schedule D. Client shall be responsible for providing its Customers the means to access the Services. Client shall be solely responsible for providing any required web and/or mobile interface to enable potential and actual Customers, as applicable, to provide appropriate permissions in connection with obtaining Services, receive disclosures and other information required by applicable law or Bank, and manage their use of and access to Services.
  8. Privacy Policy and Authorizations
    1. Before any End User engages with the Client Application in a manner that uses the Service, the Client will ensure that each End User is put on notice of, and agrees to, DisburseCloud’s privacy policy as expressed under (A) or (B) as follows:
      The Client must (A) maintain a clear and conspicuous link in its privacy policy to DisburseCloud’s privacy policy located at https://www.DisburseCloud.com/legal with a clear and conspicuous statement that each End User acknowledges and agrees that End User data and information will be treated in accordance with such policy, or (B) include a statement in the Client’s privacy policy that use of the Service is subject to DisburseCloud’s rights, power, and authority as specified in DisburseCloud’s privacy policy. The following language will be deemed to comply with the preceding sentence:
      [Client] uses NLR Resources, Inc. dba DisburseCloud (“DisburseCloud”) to provide tax or financial related services and are for informational purposes only and provided to you AS IS and without warranty or guarantee. Consult a tax or legal professional or provider before filing your annual tax returns. By using our service, you grant [Client] and DisburseCloud the right, power, and authority to access and transmit your personal and financial information that you provide to [Client]. You agree to your personal and financial information being transferred, stored, and processed by DisburseCloud in accordance with the DisburseCloud Privacy Policy. [DisburseCloud Privacy Policy must link to https://www.DisburseCloud.com/legal.]  The Client may use alternative language in its privacy policy that also complies with this Section with DisburseCloud’s prior written consent.
  9. Software Restrictions
    1. Client will not, nor permit or encourage any third party to, directly or indirectly:
      (i)   reverse engineer, decompile, disassemble, or otherwise attempt to discover or derive the source code, object code, or underlying structure, ideas, know-how or algorithms for the software underlying the SaaS Services (the “Software”);
      (ii) modify, translate, or create derivative works of the Software;
      (iii)    sublicense or otherwise distribute the Software unless a Referral and Distribution Agreement is signed between the Parties;
      (iv)    modify, remove or obstruct any proprietary notices or labels;
      (v) distribute, publish, or allow access or linking to the Platform from any location other than the Platform;
      (vi) use, copy, distribute or modify the Platform in any “service bureau” or “timesharing” business;
      (vii)   use the DisburseCloud Platform in a manner that exceeds reasonable request volume or constitutes excessive or abusive usage, be defamatory or harassing, or contain any viruses or other computer programming routines that may damage or detrimentally interfere with any system or data of DisburseCloud or its customers or partners.(v) use the Software in any manner to assist or take part in the development, marketing, or sale of a product potentially competitive with the Software or the SaaS Services. For the avoidance of doubt, the Software and the SaaS Services, including all user-visible screens and displays, represent Intellectual Property and Confidential Information of DisburseCloud, and Client will comply with Section 10 and Section 11 with respect thereto.
  10.  Cooperation  
    1. Client shall provide all cooperation, access, and assistance as DisburseCloud may reasonably request to enable DisburseCloud to exercise its rights and perform its obligations in connection with this Agreement.
  11. Data Entry
    1. Client is and shall be solely responsible for the data entry of all records, data, and other information to the DisburseCloud System (collectively, "Client Data"). Control and direction of release of Client Data is the sole responsibility of Client. It is Client’s sole responsibility to back up Client Data during the Term, and Client acknowledges that it will not have access to Client Data through DisburseCloud or the SaaS Services following the expiration or termination of this Agreement.
  12. Training and Education
    1. Client shall be responsible for training Client Users in the proper use and operation of the SaaS Services, unless training by DisburseCloud has been requested in the SOW, and to ensure that the SaaS Services are used in accordance with applicable documentation, instructions, and specifications provided by DisburseCloud.
  13. Client System
    1. Client shall be responsible for obtaining and maintaining the functionality and security of all equipment and ancillary services needed to connect to, access, or otherwise use the SaaS Services, including but not limited to hardware, servers, third-party software, operating systems, networking, web servers, and the like.
  14. Compliance with Privacy and Data Security Laws
    1. Subject to Section 9.11, Client acknowledges that it, and not DisburseCloud (a) is and shall be solely responsible for its compliance with all applicable federal, state, and local laws and ordinances (“Laws”) and/or administrative requirements for ensuring confidentiality of, limitations on access to, use, and disclosure of Client Data, Personal Information (as defined below), or PHI (as defined in HIPAA); (b) shall establish and maintain its own compliance program to ensure that its employees, agents, and contractors safeguard the privacy and security of information about individuals which is considered confidential under federal or state laws and subject to restrictions governing use and disclosure, including but not limited to PHI and personal information included in Client’s Customer records (“Personal Information”); and (c) is responsible for implementing a reasonable and appropriate data security program to prevent unauthorized access to Equipment and unauthorized use or disclosure of Personal Information or PHI.  Notwithstanding anything herein to the contrary, any failure of the Client with respect to this Section shall not be considered a breach of this Agreement; provided, however, that Client shall indemnify DisburseCloud in accordance with Section 15.5 from and against any action, claim, or demand resulting from Client’s failure to meet its obligations pursuant to this Section. DisburseCloud may suspend Client’s account and access to the SaaS Services at any time and without notice if DisburseCloud believes that Client is in violation of any Laws.

5. CLIENT DATA

  1. Ownership; License
    1. All right, title, and interest in the Client Data and all intellectual property rights therein belong to and are retained solely by Client. Client hereby grants to DisburseCloud a limited, non-exclusive, royalty-free, worldwide license to use the Client Data and perform all acts with respect to the Client Data as may be necessary for DisburseCloud to provide the SaaS Services to Client, subject to compliance by DisburseCloud with its confidentiality obligations under this Agreement. Notwithstanding anything in this Agreement to the contrary, DisburseCloud may collect and use data arising from, or input during, Client’s or Authorized Users’ use of the SaaS Services, in an aggregate or anonymous manner, including with respect to compilation of statistical and performance information.
  2. Data Protection
    1. DisburseCloud shall comply with all applicable data protection requirements and any industry or regulatory codes applicable to it particularly in respect of any Personal Information or PHI which it receives from Client under this Agreement, including the General Protection Regulation (“GDPR”), Regulation (EU) 2016/679, that is subject to GDPR
    2. With respect to the California Consumer Privacy Act of 2018 (the “CCPA”), DisburseCloud and Client hereby agree that DisburseCloud is a Service Provider to Client with respect to the Personal Information or PHI. DisburseCloud shall not (a) sell Personal Information or PHI, or (b) retain, use, or disclose any Personal Information or PHI for any purpose other than for the specific purpose of providing the services specified in the Agreement, including retaining, using, or disclosing the Personal Information or PHI for a Commercial Purpose. For the avoidance of doubt, the foregoing prohibits DisburseCloud from retaining, using, or disclosing Personal Information or PHI outside of the direct business relationship between DisburseCloud and Client.
    3. The Parties acknowledge and agree that DisburseCloud’s access to Personal Information or PHI is not part of the consideration exchanged by the Parties in respect of the Agreement
    4. DisburseCloud shall promptly take such actions and provide such information as Client may request to help Client fulfill requests of Customers to exercise their rights under the CCPA and other applicable privacy laws, including, without limitation, requests to access, delete, opt out of the sale of, or receive information about the processing of, Personal Information or PHI pertaining to them. DisburseCloud agrees to cooperate with Client to further amend the Agreement as may be necessary to address compliance with the CCPA or other applicable privacy laws.
    5. The terms “Commercial Purpose,” “Personal Information,” “Sell,” and “Service Provider,” shall have the meanings set forth in the CCPA
  3. Protected Health Information
    1. If any Client Data constitutes PHI (as such term is defined under HIPAA), Client and DisburseCloud will enter into DisburseCloud’s form of Business Associate Agreement. To the extent that the terms of this Agreement conflict with the terms of the Business Associate Agreement, the Business Associate Agreement will govern

6. CUSTOMER SUPPORT

  1. DisburseCloud may provide customer support for the SaaS Services (“Customer Support”) as detailed in the SOW and/or the Order Form.  The Fees for Customer Support are set forth in the Order Form (“Support Fees”).

7. SERVICE LEVEL TARGETS

  1. System Availability
    1. DisburseCloud will strive to make the SaaS Services available to Client on a 24/7 basis, exclusive of Scheduled Downtime (as defined below) and Force Majeure events (as hereinafter defined). DisburseCloud will notify Client by email to Client’s assigned support contacts within two hours of any known and verified unscheduled downtime of the SaaS Services and provide status updates periodically until the SaaS Services are restored.  DisburseCloud will notify Client by email when the SaaS Services are restored.  “Scheduled Downtime” shall mean a maximum of any four (4) consecutive hours between Friday at 9:00 p.m. and Sunday at 11:59 p.m., EST, unless upon two (2) days prior notice by DisburseCloud to the Client of a longer time period.
  2. System Maintenance
    1.  From time to time DisburseCloud will be required to interrupt the SaaS Services for maintenance purposes.  DisburseCloud will use commercially reasonable efforts to conduct all such maintenance during Scheduled Downtime. DisburseCloud will use commercially reasonable efforts to provide Client with advance notice for any other interruption in the SaaS Services. 
  3. Obligation to Correct Defects
    1. DisburseCloud will correct malfunctions in the DisburseCloud System and/or the SaaS Services that prevents or impairs a feature of the DisburseCloud System and/or the SaaS Services from materially performing in accordance with this Agreement (collectively, “Defects”) at no additional charge to the Client throughout the Subscription Term.
  4. Patches and Workarounds
    1. Between regular, scheduled Software releases which provide new functionality or capability of the Software underlying the SaaS Services relative to the prior version (“Release(s)”), DisburseCloud may, at its discretion: (i) provide a "patch" or software fix developed to quickly resolve a Defect or critical regulatory requirement, with the understanding that the patch has not been through a comprehensive quality assurance testing cycle and may itself contain Defects; or (ii) suggest a “workaround," or change, in the procedures followed or method of entry of data to avoid a Defect without materially impairing Client’s use of the DisburseCloud System or the SaaS Services.
  5. Exceptions
    1. DisburseCloud will not be responsible for failures that are due to the following events: (i) any latency or downtime due to acts or omissions by Client or Authorized Users; (ii) acts of unauthorized third parties; (iii) Internet latency, failures, or outages outside of DisburseCloud’s or its Internet service provider’s control; (iv) third-party acts or omissions over which DisburseCloud has no control; and (v) problems associated with the Equipment and software systems used by the Client or its Authorized Users.
  6. False Alarms
    1. If DisburseCloud believes that a problem reported by the Client is not due to a Defect or failure in the SaaS Services, DisburseCloud will so notify Client.  Client may request that DisburseCloud investigate the problem further.  If Client so elects and DisburseCloud reasonably determines that the reported problem was not due to a Defect, the Customer Support services provided by DisburseCloud will be considered billable and Client will pay DisburseCloud for the time devoted to investigating the problem in accordance with the Fee Schedule on the Order Form.

8. INFORMATION SECURITY

  1. Information Security
    1. DisburseCloud will continually maintain a data security management program that includes reasonable and appropriate administrative, physical, and technical safeguards to ensure the confidentiality, integrity, and availability of Client Data (“DisburseCloud Security System”). The DisburseCloud Security System shall be consistent in all material respects with the best practices for such systems within its industry.
  2. Data Aggregation Services; Limited Data Set
    1. DisburseCloud will provide data aggregation services to Client, as permitted by 45 CFR 164.504(e)(2)(i)(B).  As permitted by 45 CFR 164.514(e), Client agrees that DisburseCloud may create and retain a “limited data set” of Client Data that excludes direct identifiers of individuals, their relatives, employers, or household members.  DisburseCloud may use the limited data set for purposes of continuing development of quality improvement methods, enhancements[NR31] [j32] [RO33] [NR34] [RO35]  of the Software underlying the SaaS Services, and creation of services to support the operations of DisburseCloud customers.  DisburseCloud agrees that it will follow the requirements of 45 CFR 164.514(e)(3), which restricts DisburseCloud’s use and disclosure of the limited data set.
  3. Public Releases
    1. All media releases, public announcements, and public disclosures by Client or DisburseCloud or their representatives, employees, partners, or agents relating to this Agreement or the name or Marks of Client or DisburseCloud, including, without limitation, promotional or marketing material shall be coordinated with and approved by both Parties in writing prior to the release thereof.
  4. Referrals
    1. Licensee agrees to assist DisburseCloud by serving as a reference to prospective clients of DisburseCloud. Clients agrees to be identified as a user of DisburseCloud  and other software licensed from DisburseCloud., to discuss clients' experience in using DisburseCloud’s products and services with prospective clients of DisburseCloud. DisburseCloud agrees to be considerate of clients resources and time spent in producing such references and will work jointly with client to ensure such assistance is not over-utilized.
  5. Licensee Publicity Assistance
    1. In consideration of Pricing Incentives Granted by Disbursecloud. Initial Press Release, (i) After the execution of this Agreement and (ii) go live, client and DisburseCloud. will work together to produce press releases which shall (x) jointly announce the relationship between the parties, and (y) the successful completion of the deployment of the systems.

9. CONFIDENTIALITY

  1. Definition of Confidential Information
    1. “Confidential Information” means any and all non-public information disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) in any form or medium, whether oral, written, graphical, or electronic, pursuant to this Agreement, that is designated confidential or proprietary, or that a reasonable person should understand is confidential or proprietary. Confidential Information includes, but is not limited to, the terms of this Agreement, information related to either party’s technology, products, know-how, proprietary business processes and technology; trade secrets, whether or not patentable or copyrightable, specifications, customers, business plans, pricing information, promotional and marketing activities, finances and other business affairs, operational data and models; information regarding features, functionality and performance of  the Software; and Client Data. Client will not remove or destroy any proprietary markings or restrictive legends placed upon or contained in any DisburseCloud documentation. Confidential Information also includes protected health information, electronic or otherwise, that is protected by state privacy laws, and/or the federal Health Information Portability and Accountability Act of 1996, as amended (“HIPAA”), and the regulations enacted pursuant to it and its amendments, including but not limited to 45 C.F.R. 160.103; all other medical or health information; and personal private information, electronic or otherwise, that is protected by law, including but not limited to federal, state and privacy laws.
  2. Nondisclosure Obligations
    1. The Receiving Party will not use the Confidential Information of the Disclosing Party for any purpose other than as necessary to fulfill its obligations or to exercise its rights under this Agreement, and by DisburseCloud to improve the Software (the “Purpose”). The Receiving Party will not disclose Confidential Information of the Disclosing Party to any third party; provided that the Receiving Party may disclose Confidential Information to its partners, officers, directors, employees, contractors, affiliates, agents, advisors, or representatives who need access to such Confidential Information for the Purpose and who are subject to written confidentiality obligations at least as stringent as the obligations set forth in this Section. Each party accepts responsibility for the actions of its partners, officers, directors, employees, contractors, affiliates, agents, advisors, and representatives, and will protect the other party’s Confidential Information in the same manner as it protects its own valuable confidential information, but with no less than reasonable care. The Receiving Party will promptly notify the Disclosing Party upon becoming aware of a breach or threatened breach hereunder and will cooperate with any reasonable request of the Disclosing Party in enforcing its rights.
  3. Exceptions to Confidential Information
    1. Confidential Information does not include information which: (i) is known by the Receiving Party prior to receipt from the Disclosing Party, without any obligation of confidentiality; (ii) becomes known to the Receiving Party without confidentiality obligations directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (iii) lawfully becomes publicly known or otherwise publicly available, except through a breach of this Agreement; or (iv) is independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information. The Receiving Party may disclose Confidential Information pursuant to the requirements of applicable law, legal process, or government regulation, but only after it notifies the Disclosing Party (if legally permissible) to enable the Disclosing Party to seek a protective order or otherwise to contest such required disclosure, at Disclosing Party’s expense.
  4. Injunctive Relief
    1. The Parties agree that any unauthorized disclosure of Confidential Information may cause immediate and irreparable injury to the Disclosing Party and that, in the event of such breach, the Disclosing Party will be entitled, in addition to any other available remedies, to immediate injunctive and other equitable relief, without bond and without the necessity of showing actual monetary damages.
  5. Compelled Disclosure
    1. Notwithstanding Section 10.2, the Receiving Party may disclose Confidential Information of the Disclosing Party to the extent necessary to comply with a court order or applicable law; provided, however that the Receiving Party delivers reasonable advance notice of such disclosure to the Disclosing Party, if possible under the circumstances, and uses reasonable efforts to secure confidential treatment of such Confidential Information, in whole or in part.

10. CONFIDENTIALITY

  1. Ownership
    1. DisburseCloud owns and retains all right, title, and interest in and to (i) the Software underlying the SaaS Services and all improvements, enhancements, or modifications thereto, (ii) any software, applications, inventions, or other technology developed in connection with the Services, or DisburseCloud’s performance of its duties under this Agreement, and (iii) all intellectual property and proprietary rights in and related to any of the foregoing (collectively, “Services IP”). To the extent Client is determined to have any right, title, or interest in any Services IP, Client hereby assigns all of its right, title, and interest in such Services IP to DisburseCloud, and Client shall execute all papers and do all things deemed necessary by Client to ensure that DisburseCloud obtains full right, title, and interest in the Services IP.
  2. License to Client Marks
    1. During the Term, Client hereby grants to DisburseCloud a limited, non-exclusive, non-transferable, and terminable license to use Client trademarks, logos, slogans, and color scheme to provide the SaaS Services and Professional Services (collectively, the “Client Marks”) in connection with customizing the SaaS Services for Client’s business purposes. DisburseCloud [RO36] is authorized to include the Client Marks and name of Client in its own advertising materials, client lists, and social media. DisburseCloud acknowledges and agrees that Client is the sole and exclusive owner of all right, title, and interest in and to the Client Marks, and that any and all goodwill derived from DisburseCloud’s use of the Client Marks shall inure solely to the benefit of Client.